A Case of “Pure Heart Empty Head”

Just when you thought that Judge Penguin and I reached a comfortable co-existence, he goes and ruins it. After many months of decency, he decided to try and stick it to me, and I wasn’t going to take it, and I turned into Gordon Ramsey as if he had walked into a restaurant that serves only microwaved frozen foods.

We sued a Defendant, let’s call her Sextomom. Sextomom owed money to a health care provider for various medical services in relation to the assisted birth of her several children. Her insurance carrier paid, and left a small, but not inconsequential patient responsibility. When she registered for the services, she listed her address in Gotham County. When we sent mail there, nothing was returned as undeliverable. However, when we tried to serve her with process, we were unable to effectuate personal service. We did a postal search, and that Gotham address was correct. We even ran a quick credit report header search, and it confirmed the address. So, under New York law, we accomplished “affix and mail” service on her door.

Sextomom never filed an Answer, and we obtained a default judgment. In enforcing the judgment, we found out where she worked, (which was in Gotham),  and commenced a wage garnishment. So, she retained counsel to vacate the judgment. Typically, on these fairly straightforward medical co-payment cases, attorneys call us up and we settle the case lickety-split. But not so in this case. Sextomom’s attorney, let’s call him Mr. Mako, decided that rather than call us up to settle, he’d make a motion for sanctions against us, along with his motion to vacate the judgment, claiming that Sextomom did not reside in Gotham County, but actually in Metropolis.

Of course, of all Judges to be assigned this case, it was assigned to none other than Judge Penguin.

I appeared before Judge Penguin on the motion, obviously opposing the vacatur, and vehemently opposing sanctions. As is his way, Judge Penguin calls two-attorney cases up to the bench for off-the-record conference, despite it being in an open courtroom packed with people.  In the conference, Mako started attacking “those collection attorneys” and accusing us of “sewer service” or whatever hot buzzwords are used in the consumer advocacy bar. He produced a copy of a deed showing that Sextomom bought a house in Metropolis, and that Sextomom had a car registered to that address in Metropolis. He also showed a Google search that Sextomom’s home was listed as being in Metropolis. While most Judges wouldn’t even countenance such blather, Judge Penguin turned his attention to me.

“So, Mr. Wan, what efforts did you do to satisfy due diligence requirements?” he asked.
“We served the address given to the hospital, and we did a United States Postal Service search, as well as a credit header. We never had any returned mail.” I replied with aplomb.
“Did you do a real property search in Metropolis?”
“No, we had no basis to know to do that.”
“How about a DMV search?”
“No, we did not. We already did two searches.”
“How about a Board of Elections search?”
“I don’t even know how to do that.”

Judge Penguin sat back in his chair. “Well, the Court finds that Plaintiff’s attorneys have failed to do due diligence, as there were several other methods to ascertain address that they failed to utilize. I am going to vacate the judgment and dismiss the case.”

Mako’s eyebrows raised, “And issue sanctions and attorneys fees for the frivolous behavior!”

Judge Penguin shook his head. “I don’t think there was any actual sanctionable conduct by Mr. Wan’s office. I think he just failed to be diligent.” Penguin smirked, and turned to me. “This was a case of pure heart and empty head.”


Right there, the Gordon Ramsey in me heard the microwave chime, and I lost it, as images of Ponzi schemers and white-collared criminals with failed “pure heart and empty head” defenses being escorted down court steps in handcuffs, danced in my head.

“Judge, that’s an incredibly unfair and inappropriate statement.” And then I went off on Judge Penguin. I called him biased against creditors, I accused him of having a grudge against me, and I accused him of being completely partial. I don’t even really remember what else I said.  Though, I am certain that I avoided making fun of his Penguin nose, Penguin umbrella, and Penguin walk.  He then proceeded to dismiss the case and vacate the judgment, and I left the room to go to another part, before another Judge.

After I was done with Court, Penguin’s clerk came and found me. The Clerk tried to warn me that Judge Penguin was upset that I lost my temper. I told the Clerk that I wasn’t very happy with the Judge’s repeated actions, and was contemplating a motion for recusal, and I left.

Two hours later, after venting to my wife, my senior partner Bob Levy, and pretty much anyone else who would listen, I got an email from the Clerk, asking me to call him. So, I did. And he said, “Judge Penguin wants to apologize. He realizes that he used words that were not intended to be personal, and that he regrets saying that words.” I told the Clerk that I would be in Court the next day to see the Judge.

And the next day, I did. And Judge Penguin repeated the message that his Clerk delivered. I apologized for losing my temper, and we shook hands…. to live to fight another day.
Timothy Wan is a partner in the firm Smith Carroad Levy & Wan, in Commack, New York,  can be reached at twan@smithcarroad.com, and wants you to know that Judge Penguin doesn’t ACTUALLY look like The Penguin. It’s just a fun allegory.


(Originally published in Commercial Law World Magazine, May 2012)